The other day, in response to Raha Wala’s comments on Hedges, I promised to address the First Amendment question at the heart of Judge Forrest’s ruling—a promise that seems to have excited David Remes. Steve Vladeck, however, beat me to the punch in giving a detailed analysis of the matter, so this post will be a bit less involved than I had planned. I largely agree with Steve’s analysis, which I commend to readers, though I draw a different conclusion. For what it’s worth, here’s why I don’t think that Section 1021 of the NDAA violates the First or Fifth Amendments—and why I think it would be very clarifying for this case to wait until a plaintiff with standing came forward.
Let us start by hypothesizing for a moment a plaintiff with standing to challenge Section 1021, one who—unlike the current plaintiffs—could credibly contend that his or her constitutionally protected activities were, in fact, being chilled by the law’s alleged vagueness. The current plaintiffs cannot claim this because the government simply does not detain people for speech activity conducted independently of enemy forces by journalists, activists, or Icelandic parliamentarians.
Let’s also assume away any mootness question that arose in this case when the government stated to the court that without more, the facts the plaintiffs allege could not as a matter of law give rise to detention.
And importantly, let’s assume too that the conduct our hypothetical plaintiff claims to be engaged in does not meet the definition of “material support” of terrorism in federal criminal law. Since the Supreme Court has already upheld that law against vagueness and First Amendment challenge, after all, we know that conduct covered by that law is presumptively not constitutionally protected. So if the support in which our hypothetical plaintiff wishes to engage meets that threshold, it’s presumably not a problem but a good thing if Congress chills it.
In other words, the plaintiff who has a case to bring here is one (a) who has constitutional rights, (b) who can credibly argue that he is engaged in activity that is constitutionally protected, (c) who can credibly argue that he is chilled in such activity by the existence of Section 1021, and (d) who can credibly argue that the nature of his support activity falls short of “material" support of the type that would run afoul of 18 U.S.C. §2339B(a)(1).
Now I have a sneaking suspicion that the set of such people is, in fact, null. But never mind that for now. All that matters for present purposes is that the person with standing to challenge this law has be able credibly to claim that the difference between “substantial” support and “material support” is so murky that the courts cannot tolerate the existence of a law that authorizes detention based on “substantial” support.
It is true that we don’t have a lot to go on with respect to the meaning of “substantial,” as opposed to “material.” But what we do have to go on does not suggest it is a relaxation of the standard. If anything, it suggests that “substantial” was meant to strengthen it. Judge Forrest badly muffed her discussion of Al Bihani and the D.C. Circuit’s refusal in that case to incorporate international law into the AUMF. But as Steve and Marty Lederman have explained, the court’s initial embrace of detention based on “purposeful and material support” (language drawn from the Military Commissions Acts)—in place of the Obama administration’s proposed “substantial” support authority—was arguably part of its rejection of the idea that the laws of war inform the scope of detention authority under the AUMF. The administration, which did regard itself as limited in its detention power by international law, turned around and asked Congress in the NDAA to use its language (“substantial support”) by way of tethering itself to the laws of war. In other words, the administration clearly regarded “substantial” support as more limited than “purposeful and material support”—and specifically, as more limited in the sense that it is informed by and consistent with the laws of war. I don’t want to overstate this point; since the exact contours of the claimed authority are admittedly a bit fuzzy, it’s not 100 percent clear that “substantial” is just a subset of “material.” But it does seem likely that detention based on substantial support it at least as restrictive as detention based on material support.
More importantly, authorizations for the use of military force—and remember that the NDAA is a reaffirmation of such an authorization—are always vague. Consider a vagueness challenge by an American Nazi sympathizer to Congress’s 1941 authorization “to employ the entire naval and military forces of the government to carry on war against the Government of Germany.” The authorization does not specify what—or who—is encompassed within the term “Government of Germany.” Unlike the NDAA, it does not specify the class of detainable people at all. It does not make clear what conduct the individual must eschew in order to avoid having “the entire naval and military forces” of the United States arrayed against her. Yet would we really say that such a document was unconstitutionally vague? No, we would say instead that it is a brief, general document that invokes an entire body of law—the laws of war—and that this larger body of law both authorizes and restrains presidential action. That is how we should view both the AUMF and the NDAA as well, in my view.
Even under modern international law, the detention of non-enemy forces can be kosher, at least under certain circumstances—where the conduct of protected persons (in this case, support for the enemy) makes such detention “absolutely necessary, for example. This language is not crystalline either, yet we wouldn’t say that Article 42 of the Fourth Geneva Convention is unconstitutionally imprecise or vague. We would say that its content gets fleshed out over time, according to the development of state practice and custom. Similarly, the Alien Enemies Act is still on the domestic books, and it authorizes detention in any “declared war” of “all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized.” That’s a heck of a lot broader than Section 1021 of the NDAA, but did the Supreme Court strike it down for vagueness or overbreath? Nope. “The Act is almost as old as the Constitution, and it would savor of doctrinaire audacity now to find the statute offensive to some emanation of the Bill of Rights,” the Supreme Court wrote in 1948.
To put it simply, I agree with Steve that there is a difficult constitutional question lurking in this case. But it seems to me that you have to go through an exercise in intellectual jiu jitsu to imagine the plaintiff potentially injured by it. As long as the government declines to detain citizens or lawful residents on the basis of support for the enemy that is at once “substantial” but not “material,” I think that question is little more than an amusing thought experiment—one on whose basis I cannot imagine issuing a real injunction.